FMLA abuse

hrtcfv

We have 2 staff members that have recently been out on FMLA. Neither has exhausted their 12 weeks and we are documenting time missed and tracking the time. Both are missing either Mondays, Fridays or weekends regularly. One called in and said Mondays are not good for me - she did not say her health problem was an issue. She has also been diagnosed with another problem so I think ADA will come into the picture. How can we address the abuse problem and not cross any lines that will trigger an action against us becaus of the FMLA and possibly the ADA? If we prove a pattern (which we can from time records) will this help us address the abuse without repercussions?

Rockie

I would say there would have to be some type of medical documentation as to the problem and whether it is, in fact, a serious health condition. Occurring every Monday and/or Friday would be highly suspicious behavior and I feel you are correct and within your rights to question this. Also, depending upon that the ADA situation is, you have to proceed cautiously with this also. You definitely need more information from the employees in question. You also have the right to independent medical confirmation under the FMLA.

smarti

Did you obtain a Doctor's Certification before granting the FMLA? Did the Physician say primary care or otherwise was needed on an intermittant schedule? Did the supervisor try to work out a work schedule to fit the employee and the company? We probably need to know more about how this was administrated.

System

I agree with Rockie and Smarti. The FMLA and ADA both give you the right to verification from a health care professional. This verification should tell you whether the condition interferes with attendance. If it's not clear, you can ask the doctor for a verification clarification or amplification. (Sorry, I got carried away.)

Be careful not to cut corners on your procedures or make hasty decisions. If things get ugly, you might need a lawyer.

Pat Dalton

I think you have a right to ask the question each time the employee calls in-- "Is this absence related to your current FMLA?" If they say that it is each time, we (Occupational Health) would contact the physician for "clarification" regarding the medical need for them to be out on Mondays and Fridays, etc. This certainly raises red flags. We have had several of these cases as well as some who consistently come in 5-15 minutes late and relate it to their FMLA's. With these situations, we have altered their work hours to accommodate and then expect them here on time (i.e. Have them work 8:30 to 5:00 instead of 7:30 to 4:00). That gives them the extra time they seem to need.....but if they still don't get here on time, we contact the physician and explain what we have done, asking if there are other ways to accommodate. In virtually all the cases we have had to date, the physician indicates that either there is no problem causing them to be 15 minutes late, or that the change in schedule should meet the employee's medical need.

Margaret Morford

You really should be careful in contacting the employee's physician without permission from the employee. I'd get it in writing. A better way to handle this is to say to the employee, "We want to make sure that we excuse every bit of time that is FMLA related. Each time you miss work due to your serious health condition, we need a note from your doctor certifying that this is related to your condition. We will certify everything your doctor says is medically related. We also want to make sure, for your own well-being, that your doctor is aware of the frequency of your problems. We want you to take care of yourself. If we don't get the certification, we have to treat this like a regular absence or tardy." After 2 or 3 phone calls to their doctor to get a doctor's note, the doctor will tell them to get to work, that there's nothing wrong with them. If they really are having these kind of problems, their doctor needs to know it.

Hope this helps. Call me if you have questions at 615-371-8200.

Margaret Morford
theHRedge

CuriousG

Margaret-I thought the Health Care Provider Certification was supposed to cover things like this. Wouldn't DOL view a requirement for getting a physician's statement of need for every intermittent and partial absence as harassing behavior?

I think I would prefer to get a Certificate of Medical Need, and then hold the employee to the times and frequency of absences certified in that. If the employee tells me that their condition has changed, then I would ask them to get a new certificate of need from the Health Care Provider to document that.

The FMLA does give employees a lot of rights, but it does not take away management's basic right, and responsibility, to do their job-manage the situation. The law and regulations even provide us with some excellent management tools to do this-like the Health Care Provider's Certificate.

Margaret Morford

[font size="1" color="#FF0000"]LAST EDITED ON 05-30-01 AT 04:06PM (CST) by jrobb (admin)[/font][p]CuriousG - The only circumstances in which I would use this, is when the intermittent leave is for a condition that flairs up unexpectedly. In our case, it was an employee with lupus, who used her condition/disability to come in late or sleep in when she wanted to. Her excuse was always that her lupus flaired up that morning and she couldn't get out of bed. She was an attendance problem as well. There was no way for the doctor to predict her real flair ups and we wanted to excuse anything that was related to lupus to ensure that we were being fair. We approached the employee from that view point. We treated anyone with a condition that flaired up unexpectedly the same way so that there would be no arguement we were penalizing this employee for using FMLA. We also offered to move her hours to later in the day if that would help her. I do think that you have to be careful how you handle this and not use it as a means to get rid of a problem employee. Take care with regard to what you say to the employee and make sure that it is delievered from the stand point of "We want to make sure that we give you credit for as much FMLA as possible. We don't want you to get displined or fired because of your health condition, etc." Remember, when the doctor certified her, he couldn't predict when she would need the intermittent leave either. We also wanted to make sure that if she was having problems, her doctor knew it and would do whatever he could to help her when she had a episode. She only got doctor's notes twice before her doctor told her to get out of bed and come to work, that she was in remission and not having any medical difficulty.

Call me if you have any questions at 615-371-8200.

Margaret Morford
theHRedge

joyce

I believe the FMLA regs state that an employer can require medical recertification every 30 days, and not each time the employee is absent and claiming it is FMLA related. Of course this assumes that the employer has requested a medical certification from the employee from the beginning. I would be very careful about requiring the employee to have a doctor's note for each absence unless this was previous company policy.

Margaret Morford

Joyce is correct in saying that you have to be careful about handling this type of FMLA situation. Let me make sure that I was clear about what was done. We did not require that the employee re-certify each time she missed. We certified her for her lupus condition for as long as she was employed and had not exhausted her FMLA. We simple required a note from her doctor informing us which incidents were related to her lupus so that we could insure that she was getting excused for every bit of time she missed due to her lupus. We couldn't separate her regular misses for a cold from her lupus time missed. We approached it from the viewpoint of giving her the maximum credit possible.

Hope that helps. If you are going to do this, I recommend that the HR department manage it as they understand the liability for reatilation and what should be said and what shouldn't. The supervisor should tell the employee to see HR and then HR advise the supervisor what absences should count and what should be excused. This will lift a huge burden from the supervisor and make sure the experts are dealing with this type of tricky situation.

Margaret Morford
theHRedge